PROTEST 




OF THE 

FREE SPEECH LEAGUE 

». * 

AGAINST THE PASSAGE OF 

SENATE BILL, No. 1790 
ASSEMBLY BILL, No. 650 

NEW YORK LEGISLATURE, I9II 


WHICH PROPOSES TO PENALIZE CERTAIN 
MEDICAL ADVERTISING AND INTELLIGENCE 


PREPARED BY 


THEODORE SCHROEDER 


AUTHOR OF ‘ ‘OBSCENE” LITERATURE AND CONSTITUTIONAL LAW 
ETC., ETC. COMPILER OF FREE PRESS ANTHOLOGY, ATTORNEY 
FOR THE FREE SPEECH LEAGUE, LEGAL COUNSELLOR 
TO THE MEDICO-LEGAL SOCIETY. 


FREE SPEECH LEAGUE 

TEMPORARY ADDRESS 
56 EAST FIFTY-NINTH STREET 
NEW YORK CITY 
1911 









Gin 

Publisher 


r*n it 




* • 


TO THE HONORABLE GOVERNOR AND MEM¬ 
BERS OF LEGISLATURE OF THE STATE OF 
NEW YORK: 

ARGUMENT AND PROTEST AGAINST 

SENATE BILL No. 1790 
ASSEMBLY BILL No. 650. 

Penalizing Certain Medical Advertising and Intelligence. 

Not having obtained an opportunity for opposing these 
bills before the committees having them in charge, I avail 
myself of this method of presenting to the Legislature some 
consideration why these proposed laws should not be en¬ 
acted. 

THE PURPOSE OF THIS BILL: 

The avowed purpose of this legislation is to prohibit every¬ 
thing imparting information as to how, where, or by whom 
venereal diseases can be treated, cured, or advice concerning 
the same be had. 

A proviso at the end of the bill uses this language: 

“Provided however that this section shall not be construed 
to apply to didactic or scientific treatises on sex conditions, 
disease, or infirmities which do not advertise or call attentio7i 
to any person or persons who will treat or advise concerning 
the same, nor to any office or place where the same may be 
treated or where advice will be given concerning the same.” 

Because in this bill the portion which prescribes the criteria 
of guilt fails to include the standards which will determine 
the legal distinction between an advertisement of sex cures and 
a scientific or didactic discussion of them, it should be con¬ 
sidered unconstitutional . 1 

Conscious of this uncertainty, the author of this bill added 
the proviso just quoted, and thus, if the bill should become a 

iSee: Due Process of Law in Relation to Statutory Uncertainty 
and Construction Offenses; published by the Free Speech League; 
also Obscene Literature and Constitutional Law, chapters 18 to 22, 
both in N. Y. State Library. 


law, the proviso might encourage judges, by judicial legisla¬ 
tion, to penalize all scientific and didactic discussions of the 
treatment of sexual disorders, if the address, or even the name 
of the author, is attached. Especially would this be likely 
if the accused person had made himself disagreeable by repudi¬ 
ating those rules of medical societies which are miscalled pro¬ 
fessional “ethics.” 

It is to be observed that this is not a proposition to punish 
false or fraudulent statements concerning such diseases, their 
treatment or cure; it is avowedly aimed at all publicity in 
such matters, not excepting truthful, accurate scientific in¬ 
formation imparted by physicians, if these attach their name 
or address to the same. 

THE MOTIVES: 

The modern psychologist esteems the reasons which people 
assign for their conduct as being but a justification, or explana¬ 
tion, of their predispositions, otherwise acquired, and often a 
method by which the real motives are concealed. In this 
aspect it becomes important always to inquire whence come 
those predispositions, which the advocates of any meas¬ 
ure may be concealing? Is it determined by an impersonal 
judgment, founded upon observations of the facts of nature, 
or is it the product of mere unreasoned emotional aversions 
or attractions which perhaps are mere symptoms of nervous 
disorder or emotional perversion? Let us apply these con¬ 
siderations to the bill in question and see if we can find an 
explanation for it other than those which are urged, and 
later let us make inquiry as to the sufficiency or apparent 
untruth of the reasons given for this bill. 

IS IT TO PREVENT FRAUD? 

In a former legislature (and doubtless now), it was 
claimed that this legislation is necessary to prevent fraudulent 
representation about venereal diseases, and it is claimed that 
such are being made by quacks, or alleged quacks, outside 
the medical trusts, for the purpose of taking away the latter’s 
patients and their money. This contention is manifestly a false 
pretense, because statutes already existing are ample for the 
punishing of every fraudulent representation, whether by mail, 
or other methods within the State. 

IS IT TO PREVENT INDECENCY? 

The claim has also been made that this legislation is neces¬ 
sary for the suppression of all such sexual literature because 


it is offensive to decency, and “purity.” This is also manifestly 
a false pretense, because Federal and State statutes already 
penalize “obscene,” “indecent,” “filthy” and “disgusting” prints. 
We are therefore compelled to look elsewhere for the real, 
motives which prompted the demand for this legislation. 

ONE OF THE REAL MOTIVES 

I suspect that one of the real motives for this legislation 
is to be found in the strange mental operations of certain 
moral perverts whose opinions on such matters appear to be 
determined by an insane over-valuation of the iniquity of the 
mere thought of sex and the stupid assumption on their part 
that if prints of this sort can be kept from the sight of 
people that nothing will exist either in their social environ¬ 
ment or their own physiological mechanism to suggest such 
thoughts. This form of mental aberration is illustrated by 
the following quotation from a physician, whom I find it 
difficult to credit with sanity, but who wrote the following: 

“You cannot teach purity to any living brain withou 
contrasting it with impurity, and to create certain indistinct, 
gauzy, undefined pictures of contours or unmentionables in 
a young person’s brain is far worse and seductive than is 
the placing of the originals—in all their abhorrent, disgusting, 
clammy physical details—before their blood and flesh eyes 
and reach . 8 I would a thousand times prefer to attend 
my own daughter’s funeral than to know that the school¬ 
teacher or anybody was teaching her the how and wherefore 
of her playmates’ organic differentiation.”* * * * 

It is my firm belief that this kind of moral sentimentalizing 
is founded upon diseased nerves and unhealthy disturbances, 
or perversion of those feelings which have their origin in 
the sex-nerve centers. It is an outrage to abolish our guarantee 
of freedom of the Press, and to make ignorance compulsory, 
at the behest of those few who are thus afflicted. 

ANOTHER OF THE REAL MOTIVES 

Another manifestation of the kind of moral perversion 
which could induce an indorsement of this bill, is found in 
the following statement, copied from the Woman’s National 
Daily and credited to “Dr. Lyman B. Sperry, a widely known 
author and lecturer.” Dr. Sperry is the author of some sex 
books published by religious societies and he is lecturer upon 

( 6 Autology, by Dr. Edward R. Moras, pp. 187-188.) 


sex matters before church organizations. He is said to have 
commented upon Dr. Ehrlich’s new discovery for the cure of 
syphilis by the use of Salvarsan (or 606, as it has been referred 
to in popular prints). Dr. Sperry is reported to have said: 

“If such a chemical has been discovered, and I don’t be¬ 
lieve it, it will be the greatest curse mankind has been given 
since Adam and Eve were driven from the Garden of Eden. 
If such a cure has been discovered it will have a very harm¬ 
ful effect on all mankind, as it will be the means of more 
loose living than is now prevalent. I hate to think of the 
moral influence it will have.” 

Here then we have the strange logic which ought to make 
it a duty to penalize the cure of dyspepsia or delirium tremens, 
because such cures tend to make gluttony safe. Is our consti¬ 
tutional guarantee of Freedom of the Press to be ignored at 
the behest of such lunacy? 

Commenting upon the statement of Dr. Sperry, Dr. William 
J. Robinson says: “If this be so, then do not those pious 
humbugs see that every other physician who is treating ven¬ 
ereal disease is a criminal against our morals? If it is wrong 
to discover a remedy which will cure syphilis in a week, then 
it is wrong to cure syphilis in a year or three years. We should 
refuse to treat venereal disease at all! Let the wretches, 
who are the victims of their own debauchery and immorality, 
suffer forever! By curing them, by perfecting our methods 
of treatment, we encourage immorality. The wretched sinner 
knows that if he gets a disease he will go to a specialist, who 
in the space of a few weeks or a few months will cure him. 
But if he knew that no doctor would want to treat him, when 
once he got a loathsome disease he would have to keep it to 
the end of his days, he would keep away from vicious in¬ 
dulgence in illicit intercourse. Isn’t our logic perfect? Yes, 
the more we think of it, the more convinved we are that all 
search for effective anti-venereal remedies, all treatment of 
venereal disease, is immoral. Yes, we are going to give up 
our present specialty and we are going to plead with our 
genito-urinary surgeons and syphilologists to cease treating 
venereal patients, because by doing so they contribute in¬ 
directly, but none the less positively, to the spread of im¬ 
morality. And should we fail by moral suasion to make 
them give up their nefarious work, we shall introduce a bill 
making the treatment of venereal disease a felony, punish¬ 
able by twenty years at hard labor. And we would urge the 


judges to show no mercy to venereal specialists even of the 
highest standing, nor to druggists or manufacturers who 
traffic in anti-venereal drugs. 

“Our morals must be safeguarded at all hazards. Fiat 
virtue, pereat coelum.” 3 What was thus said sarcastically 
is about to become a fact. 

THE MOTIVES OF THE MEDICAL TRUST 

There is another reason for the enactment of such a law 
which is found in the “ethics” of the doctors' trade union. 
On the whole, I approve of trades unions, but certainly this 
is the most pernicious and has the least excuse for its 
existence. The medical societies are anxious to put out of 
business the “scabs” of their profession, who do not observe 
trade-union rules, nor pay dues to the union. 

A QUESTION OF SINCERITY. 

When this same bill was before the legislature a year 
ago, it had the indorsement of numerous prominent physicians, 
some of whom are the authors of medical books treating upon 
sexual subjects, and others were connected with hospitals. 
All, I believe, were members of the medical Trust and I 
assume this bill now has their indorsement. Some hospitals 
in their reports state how many cases of venereal disease 
they have treated or cured. By attaching their names or 
addresses to these reports they impart information as to where 
such diseases will be treated. Doctors connected with such 
hospitals, if they indorse this bill, are, therefore, proposing 
to penalize their own conduct. I humbly beg leave to ques¬ 
tion their honesty and good faith in indorsing this bill. Others 
issue medical books on syphilis and other social diseases and 
articles in medical journals and reprints of these, in which 
they proclaim their ability to advise concerning and to treat 
such diseases, and to these publications they attach their names 
and addresses and in them they discuss methods of treatment 
and cure. Do they honestly propose to make themselves 
criminals for continuing the circulation of these publications? 
Again I am reluctantly compelled to doubt their honesty. 
They propose to penalize such conduct as they themselves 
have been guilty of, but they do not intend to have a uniform 
enforcement of this law. Long ago the Supreme Court of 
the United States said: “It would certainly be dangerous if 

( 3 See Critic and Guide, March, 1911, pp. 78-79.) 


the legislature could set a net large enough to catch all 
possible offenders and leave it to the courts to step inside and 
say who could be rightfully detained and who shall be set 
at large.” 4 This bill proposes even a more dangerous thing. 
It will penalize all physicians writing about the treatment 
of sexual disease who attach their names and addresses and 
the members of the medical trust and their privately employed 
spies, and provocateurs, will decide against whom this law 
shall be enforced and as to whom it shall be a dead letter. 
Furthermore,under an infamous law still in force the medical 
trust in N. Y. County will get part of the fines which are 
collected from those whom its hired spies convict. No! I 
cannot believe in either the honesty of purpose, or the public 
spirit, of either the quack-moralists or of the political trade- 
unionists of the medical trust 

THE MORALITY OF ADVERTISING 

My contention is that whatever may be legitimately 

DONE MAY BE LEGITIMATELY ADVERTISED. UNTIL YOU PENALIZE 
THE TREATMENT AND CURE OF THE VENEREAL DISEASE YOU 
SHOULD NOT PENALIZE ADVERTISING WHICH ANNOUNCES WHERE 
OR BY WHOM SUCH LAWFUL CURES OR TREATMENTS CAN BE HAD. 

I recognize fully the right of the medical trade-union to 
make any rules it may see fit for its own members, and I 
even recognize their right to miscall these trade-union rules 
“professional ethics.” However, I insist that it is not within 
the legitimate province of the legislature to place in the penal 
code any of the medical trust’s “ethics,” created for promot¬ 
ing the financial interests of its members. Doubtless this 
is only the initial step. The end sought is to penalize all 
medical advertising, because all advertising equally violates 
the miscalled “ethics” of the medical trade-union. Ultimately 
all medical intelligence imparted to laymen will be penalized, 
as that also violates the “ethics” and financial interests of the 
medical priesthood. 

THE EVILS OF THIS TABOO, OF QUACK-MORAL¬ 
ISTS AND THE MEDICAL PRIESTHOOD 

I wish now to point out briefly some of the appalling 
results which have come from moral sentimentalism and that 
“ethical” snobbery which induces most of the hospitals and 

<(U. S. vs. Reese, 92, U. S. 210-221.) 


many physicians to refuse to treat venereal disease. Upon 
this showing I claim that the legislature, instead of penalizing 
advertisements which announce the possible cure of such dis¬ 
eases, should enact laws encouraging dissemination of such 
information, which states where or by whom advice and 
treatment will be given. Indeed, it seems to me that if any 
legislation upon this subject were proper, then a law should 
be passed making it the duty of public boards of health to 
advertise gratuitously the names and addresses of all hospitals 
and all physicians who are willing to give advice or treatment 
for venereal disease. 

SEX IGNORANCE AND INSANITY 

Picque found a proportion of 88% of gynocological 
affedlions among the insane, and some have found even more. 
It is quite generally estimated that of all insanities 66% 
involve the sexual mechanism or functioning. Where sex 
is the primary cause of the ultimate derangement, sex- 
intelligence usually could wholly preclude the evil consequences, 
or find an early cure. In other cases, where there is some 
sexual derangement, it is at first but a symptom of mental 
ailment, only in turn to become an aggravating cause. Here 
a greater intelligence on the part of friends and family, such 
as the general dissemination of the literature of sexual science 
would produce, will enable them to understand what now 
seems dubious, and impel them to apply much earlier for 
medical aid, when it would be far more efficacious. So long 
as we penalize such literature as “obscene/’ the advertising 
sex-specialist is a necessity and serves a useful purpose. Until 
the members of the medical trust furnish adequate publicity 
on such subjects, the independent doctor should be encouraged 
to advertise. % 

SUFFERING OF THE VICIOUS TO SAFEGUARD 

VIRTUE 

A study of venereal infection gives us some appalling 
results. Every year in our country perhaps hundreds of 
thousands of persons become its victims. Owing to public 
ignorance and a mawkish sentimentalism, many of these 
persons cannot secure treatment from the regular physician, 
nor will they be received in many hospitals. So long as this 
condition prevails advertising should be encouraged. It is 
argued that to make them suffer the penalty of vice is the 


best safeguard to virtue. Even if the transgressors were the 
only sufferers, it would still be an unpardonable inhumanity 
not to cure them if possible, because in such cases they too 
often suffer in the inverse ratio of their familiarity with the 
vicious. More general education and publicity as to venereal 
infection and its cure conduces to more justice in fitting the 
natural punishment to the crime. All disease is the result 
of some form of vicious living, and if we are to be guided 
by such irrational aphorisms, we must abstain altogether 
from trying to relieve human suffering. The pains of 
dyspepsia or rheumatism must be endured lest by their cure 
we make vicious eating safe; dipsomania and delirium tremens 
must remain uncured lest we make alcoholic beverages safe. 
So also advertising such cures must be penalized in the interest 
of morality. 

VENEREAL INFECTION AND SUFFERING OF THE 

INNOCENT 5 

When we come to consider the suffering which is un¬ 
necessarily inflicted on the ignorant and innocent, by adherence 
to this absurd dogma, then the public’s indifference toward 
the cure of venereal diseases becomes almost criminal. It is 
not infrequent that a syphilitic child will infedl its uninformed 
nurse, or an infected wet nurse, not knowing her own con¬ 
dition, transmits the disease to the child under her care. Un¬ 
numbered persons become infected merely by a common use 
of eating, drinking, or toilet utensils. 

That you may properly understand just how infamous is 
the taboo which we have placed upon this subject, and which 
by this legislation it is proposed to extend, let me go more 
into detail, and here I charge you specially to observe the 
suffering of the innocent. Eighty per cent, of the blindness 
of the new born, and twenty per cent, of this terrible afflic¬ 
tion from all causes, is due to gonococcus infection, as also 
is a large proportion of vulvo-vaginitis and joint-affections 
of children. Dr. Neisser estimates that at present there are 
in Germany about 30,000 blind persons who owe their 
affliction to this cause. In America no statistics are available, 
but probably the proportion is even greater here because here 

5 Practically all of this information about venreal infection is 
taken from “Social Diseases and Marriage” by Dr. Prince Morrow, 
and from the publications of the Am. Soc. for Sanitary and 
Moral Prophylaxis, of which he is President. 


legalized prudery has already done more than in Germany 
to suppress venereal information. 

Pinnard found that in 10,000 consecutive cases of mis¬ 
carriage or abortions 42% were caused by syphilis; the re¬ 
maining were due to all other causes combined. The mortal¬ 
ity from hereditary syphilis ranges from 60 to 80%, while 
those who survive are affected with degenerative changes 
which unfit them for the battle of life. Syphilis in France 
alone, kills every year 20,000 children, equaling 7^4% of the 
mortality from all causes combined. It is computed that 50% 
of all gonorrheal women are absolutely sterile, and gon- 
orrheally infected men are responsible for 20% of the in¬ 
voluntary sterile marriages. Sixty per cent, of the children 
born of syphilitic mothers die in utero, or soon after birth. 
Only two in five will survive even through a short life; 20 
to 30% of gonorrheally infected women abort and from 45 
to 50% are rendered irrevocably sterile. 

Fournier's general statistics, embracing all classes of women, 
show that one in every five syphilitic women contracted 
syphilis from their husbands soon after marriage. Among 
the married females in his private practice, in 75% of the 
cases the disease was unmistakably traced to the husband. 
Dr. Bulkley's statistics, in “Syphilis in the Innocent,” state 
that in private practice fully 50% of all females with syphilis, 
acquired it in a perfectly innocent manner, while in the 
married females 85% contracted it from their husbands. The 
report of a medical committee of seven gave it that in from 30 
to 60 % of the syphilitic women who had the disease it was com¬ 
municated by the husband. Dr. Morrow in his experience 
in the New York Hospital found that 70% of the women 
who applied for treatment for syphilis were married and 
claimed to have received the disease from their husbands. 
60% of all gynocologic surgical operations are chargeable 
to gonococcic infection. 

To emphasize the danger which comes to the innocent from 
the infamous and ignorant conspiracy of silence, let me quote 
these awful words from a specialist of high authority. He 
says: “It may be a startling statement but nevertheless true, 
that there is more venereal infection among virtuous wives 
than among professional prostitutes in this country.” The 
latter being the more intelligent in such matters use personal 
prophylaxis, and secure treatment earlier after infection, 


while the ignorant virtuous wife continues to suffer in 
silence. In view of this appalling condition what are you 
going to say to the quack moralists who for fear of making 
vice safe, and to the members of the medical trust, who for 
selfish gain seek to penalize all honest and truthful announce¬ 
ment as to how, where or by whom venereal disease will be 
treated? Will you by education help protect the innocent 
sufferers or will you through moral cowardice give silent 
support to and extend the infamous taboo upon sexual in¬ 
formation ? 

Expediency and the constitutional guarantee of freedom 
of the press forbid this legislation. 

Theodore Schroeder, 
For The Free Speech League. 


